SC Administrative Law Court Decisions

Wiley G. Ouzts (Outzs) brings this appeal challenging a decision by the South Carolina Department of Corrections (DOC) which convicted Outzs of possession of contraband for which he lost 30 days of good time credit. Jurisdiction is invoked in the instant case since this matter is a disciplinary hearing in which Outzs was punished by the loss of good time credits, a created liberty interest. Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 750 (2000); McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001). After a review of the record and the arguments, the DOC decision is VACATED and this matter REMANDED for a new hearing.

In this review, the Administrative Law Judge (ALJ) acts "in an appellate capacity" and is "restricted to reviewing the decision below." Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 754 (2000). The review must apply the criteria of S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2000). See S.C. Code Ann. § 1-23-380(B) (Supp. 2000) (where an ALJ is directed to conduct a review "in the same manner prescribed in [§ 1-23-380](A)."). Section 1-23-380(A)(6) establishes the following:

The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

In this case, Outzs argues that the DOC decision is made upon unlawful procedure in that actions of DOC officials violated his rights to due process.

Persons hearing disciplinary disputes may be prison officials or employees but such must be impartial. Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 751 (2000) citing Wolff, 418 U.S. 563-72, 94 S.Ct. 2978-82, 41 L.Ed.2d at 954-60. Outzs asserts the lack of an impartial hearing.

Due process is violated if the officer is substantially involved with the investigation. See Merritt v. De Los Santos, 721 F.2d 598, 601 (7th Cir. 1983) (due process violated only if officer substantially involved with investigation of charges against inmate, but not violated if officer's involvement at hearing is only tangential); see, e.g., Diercks v. Durham, 959 F.2d 710, 713 (8th Cir. 1992) (due process violation when complainant was member of board hearing the case). But see, e.g., Pedraza v. Meyer, 919 F.2d 317, 320 (5th Cir. 1990) (no due process violation when disciplinary board official's only involvement in filing of complaint was receipt of incident report and intercepted letters); Whitford v. Boglino, 63 F.3d 527 (7th Cir. 1995) (no due process violation when investigating officer signs disciplinary report as shift supervisor); Ivy v. Moore, 31 F.3d 634, 635 (8th Cir. 1994) (no due process violation when chairperson of hearing personally investigated defense because did not threaten impartial decision-making); Mitchell v. Maynard, 80 F.3d 1433, 1446 (10th Cir. 1996) (no due process violation because officer did not witness inmate's participation in riot, was not present during riot, and did not prepare offense report).

In the instant case, the hearing officer's involvement was more than merely tangential to the matter in dispute. Rather, the hearing officer assisted in conducting the investigation and physically inspected the legal box of the inmate in which was found the alleged contraband. Thus, the hearing officer was an active participant in the investigation. Accordingly, under the facts of this case, the conduct of the hearing officer as investigator is sufficient to show a lack of an impartial hearing and thus requires a new hearing.

The guilty verdict entered by DOC against Wiley G. Ouzts is VACATED and this matter is REMANDED for a new hearing.

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: April 15, 2002

Columbia, South Carolina